CLA-2 CO:R:C:T 088904 CMR
Area District Director
U.S. Customs Service
Charleston, South Carolina 29413-0876
RE: Internal Advice Request 40/90; Classification of certain
women's garments--oversized shirts and top and shorts sets--
claimed to be sleepwear; Validity of Redelivery Notice
This ruling is in response to a request for internal advice
initiated by Mudge, Rose, Guthrie. Alexander and Ferndon on
behalf of the client, Parallele Internationale.
Four samples of the merchandise at issue were forwarded to
this office for review. The samples include two oversized
pullover shirts and two shorts sets. All of the samples are made
of 100 percent cotton fine knit fabric.
Style 6189 is a woman's finely knit pullover T-shirt that is
oversized in width and length. The garment is marked as a medium
size. The arm sleeve seams extend past the shoulders and the
garment extends in length to the mid-thigh area. The garment
features a round, crew neck; short, hemmed sleeves and a hemmed
bottom. A decorative print design appears on the front. The
design depicts a partridge in full plumage on a pathway.
The second oversized T-shirt pullover lacks a style number
though it is indicated by the Parallele's counsel that this
garment was entered in 1988 as style 6191. It is also a size
medium and similarly oversized in its width and length as style
6189. The fabric of the garment extends outward slightly at the
shoulders creating short cap-like sleeves. The garment also
features a round, capped neckline; capping on the sleeves; a
hemmed bottom and eight-inch slits on the sides of the garment. -2-
The front of the garment features a decorative print design of an
elephant sitting in a chair under a beach umbrella with the word
"Florida" underneath the design. Packaging accompanied this
sample. The packaging, in German, indicates the garment is a
"stylish women's sleeping T-shirt" (in translation).
Style 6196 is a women's finely knit two-piece set consisting
of a tank top and shorts. The tank top features capping at the
neck and armholes, a hemmed bottom, and a print design with a
50's motif. The garment extends from the shoulders to the hips.
The shorts have an elasticized waistband and small side slits
with the back slit appearing slightly longer than the front.
Style 6197 is a women's finely knit two-piece set consisting
of a pullover top and shorts. The top features very short capped
sleeves, a U-shaped, capped neckline, a rib knit waistband, and a
decorative print on the front of the garment which depicts
joggers along with the word "Runner". The garment extends from
the shoulders to slightly below the waist. The shorts have an
elasticized waistband and small side slits.
On May 23, 1989, redelivery notices were issued for four
entries of Parallele's merchandise, styles 6191, 6192, 6189,
6196, 6197, 6198. The entries were made on the following dates:
12/15/88, 3/3/89, 3/27/89, and 4/7/89. The merchandise was
released on the following dates (respectively): 12/20/88,
3/13/89, 4/5/89 and 4/14/89.
The 3/3/89 entry was subject to an importer's premises
examination on March 31, 1989 and a request for further
information (CF 28) on April 7, 1989.
The goods at issue were manufactured in Brazil and,
according to the importer's counsel, originally intended for the
German market. Additionally, it is indicated in the submission
the goods were intended for the young teen girls' market.
The importer's counsel contends in his brief that these
goods are sleepwear. The goods were purchased from Cie. Hering,
a Brazilian manufacturer of intimate apparel. An affidavit of a
wearing apparel designer for Parallele indicates the goods were
purchased "off the shelf" and were not designed for the American
market, but for the Brazilian and European markets. The garments
were re-sized, however, for the U.S. market.
Are the subject garments classifiable as sleepwear as
entered or as outerwear?
Are the Notices of Redelivery issued more than 30 days after
the date of entry valid?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
Additional U.S. Note 1(a), to the General Rules of
Interpretation, provides that
[i]n the absence of special language or context which
(a) a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the
use in the United States at, or immediately prior to,
the date of importation, of goods of that class or kind
to which the imported goods belong, and the controlling
use is the principal use. (emphasis added)
Therefore, while it may be of some interest that the garments may
be considered sleepwear in the Brazilian or German markets, for
U.S. Customs classification purposes, it is how the garments are
used in the U.S. market that is paramount.
The oversized pullover T-shirts are similar to the garments
which were at issue in St. Eve International, Inc. v. United
States, 11 CIT 224 (1987). In that case, the court cited
evidence that the garments were designed, manufactured and
advertised as sleepwear, were mainly sold as sleepwear, and that
the garments themselves appeared to be suitable as sleepwear,
i.e., the sheerness of the fabrics and positioning of the designs
on the garments. The court held that on the basis of the
evidence, the importer had established the chief use (the use
which exceeds all other uses) of the garments in question was as
In Mast Industries v. United States, 9 CIT 549, 552 (1985),
aff'd, 786 F. 2d 1144 (1986), the court noted the definition of
"nightwear" as "garments to be worn to bed" and "nightshirt" as
"a nightgown resembling a shirt." The court in that case held
that the particular garment at issue was classifiable as
nightwear since it was designed, manufactured, marketed and used
As a result of the above cited court cases, when Customs is
presented with situations in which imported garments are claimed
to be sleepwear are capable of multiple uses, we look at the
evidence presented by the importer to support a sleepwear
classification. In this situation, limited evidence has been
presented. In support of a sleepwear classification, it is
submitted that the manufacturer is recognized as an intimate
apparel manufacturer. Additionally, the packaging submitted with
style 6191, while in German, indicates it is a "sleep T-shirt."
A flyer advertising style 6189 as a sleepshirt has been submitted
along with a promotional booklet for Hering in which similarly
designed garments are advertised as sleepwear, although the
colors and print design themes are quite different from those of
the garments at issue. An affidavit from a merchandiser and
salesman for Parallele was submitted which indicates the garments
were advertised, sold and invoiced by Hering as sleepwear. The
merchandiser further indicates that the garments were offered as
sleepwear by Parallele, though some buyers viewed the nightshirts
as multi-purpose garments and such views were not discouraged as
Parallele simply wanted to make sales.
An analysis of the descriptions on invoices, order forms and
purchase order forms was submitted. Reviewing this compilation
of descriptions, it is evident that these garments were described
on these forms as sleepwear, cover-ups, pj short sets, and short
sets. It appears that the oversized T-shirts were described as
cover-ups more often than as sleepshirts and that the shorts sets
were most often described as just that, and not pajamas.
In regard to the oversized T-shirts, the evidence submitted
supports a determination that these are multi-purpose garments in
the U.S. market. Determining their principle use is a more
difficult task. While it is apparent from the information at
hand that these goods may well be considered sleepshirts in the
German market, it is also apparent that they were largely
purchased to be sold at retail as outerwear garments, i.e.,
cover-ups, in the American market. In fact, following the
principle of the "garment speaks for itself", the print design on
style 6191 clearly denotes beach wear.
As to the shorts sets, Customs finds the submitted evidence
unpersuasive. The promotional booklet for Hering shows similar
garments, but with very different themes, i.e., themes associated
with sleep. It is difficult to distinguish these shorts sets as
sleepwear sets as opposed to outerwear sets. No other
advertising material for the short sets has been submitted.
Without more evidence, in light of the mixed descriptions, and
based on an examination of the garments, Customs cannot agree
with the claimed designation of sleepwear.
Objection has been made to the Notices of Redelivery. The
objection is based on a claim that because the Notices of
Redelivery were issued more than 30 days after the date of entry
they should be declared invalid and cancelled.
The Notices of Redelivery issued for Parallele's entries of
12/15/88, 3/3/89, 3/27/89, and 4/7/89, were issued under Customs
authority as set out in 19 CFR 141.113 (1990) which addresses the
recall of merchandise released from Customs custody. 19 CFR
If at any time after entry the district director finds that
any merchandise contained in an importation is not entitled
to admission into the commerce of the United States for any
reason not enumerated in paragraph (a) of this section,
he shall promptly demand the return to Customs custody of
any such merchandise which has been released. [paragraph
(a) is limited to merchandise not legally marked]
Paragraph (f) of 141.113 establishes the time limitation for
issuance of a demand for redelivery as follows:
A demand for the return of merchandise to Customs custody
shall not be made after the liquidation of the entry
covering such merchandise has become final.
Counsel for the importer has argued that 19 CFR 141.113 must
be read in conjunction with 19 CFR 113.62, thereby limiting the
time period to demand redelivery to no more than 30 days after
release of the merchandise or 30 days after the end of the
conditional release period (whichever is later). This office
agrees that the language of the two regulations must be read in
conjunction with one another.
The file indicates that an examination at the importer's
premises took place on March 31, 1989. This is within 30 days of
the release date of the 3/3/89 entry (released 3/13/89). A
request for further information was made on 4/7/89. The request
for information, CF 28, requested information for the 12/15/88,
3/3/89 and 3/27/89 entries. This request was made within 30 days
from release of the merchandise for the 3/3/89 and 4/5/89
entries. Customs views the examination of the importer's
premises and the request for information, CF 28, as establishing
a separate conditional release period apart from the initial
period of 30 days from entry. For the 12/15/88 entry, however,
the CF-28 was issued more than 30 days after release of the
merchandise and therefore could not extend the release period.
The CF 28 must be returned to Customs with the requested
information. While it is not clear from the form on which date
Customs received it, the form must be dated and signed by the
agent, owner or importer. The signature is present and the date
is clear. The date indicates that the form was signed on
5/17/89. Therefore, Customs could not have received the
requested information prior to May 17, 1989. Customs had 30
days from receipt of the information to issue the notices of
redelivery for the entries involved. The information requested
for the 3/3/89 and 3/27/89 entries involved the same merchandise
which was entered in the 4/7/89 entry. As Customs had already
requested further information on this merchandise, the importer
was under constructive notice that the release of the merchandise
was conditional upon receipt of the information requested in the
CF 28. The notices of redelivery for the 3/3/89, 3/27/89 and
4/7/89 entries were issued less than 30 days from receipt of the
requested information. Therefore, these notices of redelivery
are valid. This office agrees, however, that the notice of
redelivery for the 12/15/88 entry should be cancelled.
The packaging for the shorts sets and style 6191 of the
oversized T-shirts indicate that the garments are women's
garments and therefore they will be classified as such.
The oversized T-shirts, styles 6191 and 6189, are
classifiable as beach cover-ups in subheading 6108.91.0030,
HTSUSA, which provides for, among other things, women's
nightdresses, pajamas, negligees, bathrobes, dressing gowns and
similar articles, knitted or crocheted, other, of cotton, other.
The garments fall within textile category 350 and are dutiable at
9 percent ad valorem.
The shorts sets, styles 6196 and 6197, are separately
classifiable as tops and shorts. The shorts for both styles are
classifiable as women's cotton shorts in subheading 6104.62.2030,
HTSUSA, textile category 348, dutiable at 16.7 percent ad
The top for style 6196 is classifiable as a women's cotton
tank top in subheading 6109.10.0060, HTSUSA, textile category
339, dutiable at 21 percent ad valorem. The top for style 6197
is classifiable as a cotton pullover in subheading 6110.20.2075,
HTSUSA, textile category 339, dutiable at 20.7 percent ad
The Notices of Redelivery for the entries of 3/3/89, 3/27/89
and 4/7/89 are valid. The Notice of Redelivery for the 12/15/88
entry should be cancelled.
John Durant, Director
Commercial Rulings Division